DVCI Pty Ltd v City of Parramatta Council

[2020] NSWLEC 31

Land and Environment Court

New South Wales

Medium Neutral Citation:	DVCI Pty Ltd v City of Parramatta Council [2020] NSWLEC 31
Hearing dates:	16 April 2020
Date of orders:	16 April 2020
Decision date:	16 April 2020
Jurisdiction:	Class 1
Before:	Robson J
Decision:	See orders at [38]-[39]
Catchwords:	ENVIRONMENT AND PLANNING — Land and Environment Court — Practice and procedure —Motion to set aside an order to vacate hearing dates – Order set aside
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW) s 8.7 Uniform Civil Procedure Rules 2005 (NSW) r 49.19
Cases Cited:	Golden Max Pty Ltd v Hurstville City Council [2015] NSWLEC 16; (2015) 208 LGERA 221 Groeneveld v Wollongong City Council [2009] NSWLEC 149; (2009) 168 LGERA 260 Parcell v Leichhardt Council [2012] NSWLEC 77 Sky Design and Concepts Pty Ltd v Pittwater Council (No 4) [2009] NSWLEC 129 Xiang Rong Investment Pty Ltd v Ku-ring-gai Municipal Council [2012] NSWLEC 44
Texts Cited:	Land and Environment Court – COVID-19 Pandemic Arrangements Policy
Category:	Procedural and other rulings
Parties:	DVCI Pty Ltd (Applicant) City of Parramatta Council (Respondent)
Representation:	Counsel: Ms J Reid (Applicant) Mr I Woodward, solicitor (Respondent)   Solicitors: Swaab Attorneys (Applicant) City of Parramatta Council Legal Services (Respondent)
File Number(s):	2018/00392049
Publication restriction:	Nil

EX TEMPORE Judgment

1. Before the Court is a notice of motion pursuant to r 49.19 of the Uniform Civil Procedure Rules 2005 (NSW) to review a decision of the Registrar of this Court made on 3 April 2020 vacating a hearing otherwise set down for three days on 7, 8 and 11 May 2020.

2. The notice of motion brought by DVCI Pty Ltd, the applicant in Class 1 proceedings, filed 9 April 2020 seeks the following orders:

“1   The orders made by Registrar Froh on 3 April 2020 vacating the hearing dates are vacated.

2   The hearing dates of 7, 8 and 11 May 2020 are retained.

3   Order 3 of the Court's orders made on 26 March 2020 is varied as follows:

Pursuant to rules 31.19 and 31.20 of the Uniform Civil Procedure Rules (UCPR), all experts are to confer and are to file joint expert reports in accordance with the hearing information sheet filed with the Court pursuant to Order 6 as follows:

(a)   Acoustic joint expert report by Stephen Gauld and Richard Haydon is due to be filed and served by 17 April 2020

(b)   Joint expert report on town planning and Child care centre design issues by Jonathon Wood, Stuart McDonald, Lynda Campbell and Wendy Shepherd is due to be filed and served by 23 April 2020.

4   Such other orders as the Court sees fit.”

3. For the reasons that follow, I consider that, as there has been a material change in circumstances since the Registrar’s decision, the order made on 3 April 2020 should be set aside.

Background

4. The salient facts are relatively uncontentious and may be summarised as follows.

5. In the primary proceedings, the applicant appeals pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) against the deemed refusal of development application 599/2018 (‘application’) lodged with Council on 22 August 2018. As presently constituted, the application involves the demolition of existing structures; tree removal; and the construction of a two-storey child care centre with basement parking for 22 vehicles at 1-3 Ryan Street, Dundas Valley (‘site’). It is proposed that the child care centre will have capacity for 76 children.

6. The application was advertised and notified to surrounding property owners in September 2018. The City of Parramatta Council (‘Council’) received 15 submissions and a petition raising various issues which were communicated to the applicant along with a request that the applicant provide additional information.

7. On 18 December 2018, the Parramatta Local Planning Panel resolved, consequent upon a report prepared by Council’s Senior Development Assessment Officer, to recommend the refusal of the application based upon site suitability; amenity; streetscape character; bulk and scale; deficient car parking; and insufficient information.

8. The applicant commenced Class 1 appeal proceedings on 20 December 2018. The matter proceeded to a s 34 conciliation conference (‘s 34 conference’) conducted at the site before Acting Commissioner Bindon on 5 September 2019. Acting Commissioner Bindon inspected the site accompanied by counsel retained by each of the parties; each of the parties’ instructing solicitors; the applicant’s town planner, acoustic engineer and geotechnical engineer; Council’s internal town planner, engineer, landscaping arborist; Council’s external acoustic consultant; and Council’s legal support officer. Seven resident objectors addressed Acting Commissioner Bindon outlining their concerns.

9. The s 34 conference was adjourned to allow the parties time to continue without prejudice discussions and, on 26 September 2019, the s 34 conference was resumed before Acting Commissioner Bindon, and thereafter terminated in circumstances where the parties had not reached an agreement.

10. The proceedings were listed for a second directions hearing on 3 October 2019 before the Assistant Registrar. At that time the Court listed the proceedings for hearing on 7, 8 and 11 May 2020. At this directions hearing, Council’s solicitor informed the Court that Council consented to Acting Commissioner Bindon hearing the appeal.

11. On 19 December 2019, the Court granted the applicant leave to amend the application, presumably in response to Council’s statement of facts and contentions and without prejudice discussions at and following the s 34 conference.

12. On 4 March 2020, Council filed an amended statement of facts and contentions and advised the Court that as a result of the applicant providing a Site Investigation Report, Site Investigation Statement and a Remediation Action Plan, various contentions (being 2(G), 12 and 13(a) and (b)) were no longer maintained.

13. On 26 March 2020, the Court made orders in the proceedings which included a direction that:

“Pursuant to rules 31.19 and 31.20 of the Uniform Civil Procedure Rules (UCPR), all experts are to confer and are to file joint expert reports in accordance with the hearing information sheet filed with the Court pursuant to Order 6 as follows:

(a)   Acoustic joint expert report by Stephen Gauld and Richard Haydon is due to be filed and served by 3 April 2020

(b)   Joint expert report on town planning and Child care centre design issues by Jonathon Wood, Stuart McDonald, Lynda Campbell and Wendy Shepherd is due to be filed and served by 17 April 2020”

14. As a result of recent developments regarding COVID-19 and the Court’s adoption of the COVID-19 Pandemic Arrangements Policy, the matter was listed as part of a general call over (of all matters listed up until 30 June 2020) before the Registrar on 3 April 2020. At that time, Ms Nuttall, solicitor, appeared for Council, and Ms Reid, of counsel, appeared for the applicant.

15. Ms Nuttall confirmed that Council was content for Acting Commissioner Bindon to hear the appeal, however she had been instructed to seek to vacate the hearing dates on the basis that the application involved a large and complex two-storey development and, because of the relationship between the application and four adjoining properties, it was important for a further site view to occur to understand the impact of the development. In the circumstances, Council considered that “it will be necessary for the planning experts and possibly the acoustic experts as well as the Court to view the site and the adjoining four properties to understand the relationship in particular by reference to the side and rear of [adjacent properties] 5 Ryan and 8 Rope Street.”: Tcpt, 3 April 2020, p 2(44-48). Ms Nuttall also informed the Registrar that Council’s planning expert had not been to the site.

16. Ms Reid informed the Registrar that Acting Commissioner Bindon had undertaken a s 34 conference on the site which had been attended by the parties’ experts and a number of resident objectors.

17. More relevantly, Ms Nuttall informed the Court that Council had “changed its expert” and that Stuart McDonald, an external town planner, had been “formally appointed”, however as a result of the “COVID epidemic” he had not had an opportunity to attend the site. Ms Nuttall further stated:

“He hasn’t indicated a willingness to go onto the site and I don’t know how he’d feel about that but council’s position currently is that it’s not, sort of, requiring contractors to go onto the - you know to go anywhere really where they may be exposed to risks. In any event, even if Mr McDonald could get onto the site that doesn’t resolve the problem of council’s concern which is that we think we need to have the commissioner and the planning experts and possibly the acoustic experts onsite for a view. This is also a matter where we had, I don’t know, somewhere between 20 and 30 objectors turn up to the s 34 conference and we think they should also be given - we think it’s important that they be given an opportunity to speak at the site regarding their concerns.”

(Tcpt, 3 April 2020, p 3(28-37)).

18. Although Ms Reid submitted that it may be appropriate that Council enquire as to whether Mr McDonald is prepared to inspect the site as all the experts otherwise involved had already attended the site, Ms Nuttall replied “No. The position of the council is to vacate the hearing”.

19. In the circumstances and having heard further submissions including Ms Reid’s submission that there was “some real prejudice to the applicant”, the Registrar made orders vacating the hearing dates of 7, 8 and 11 May 2020 and standing the matter over to 12 noon on 6 April 2020 for an Online Court Response.

20. Ms Reid made a further submission that, as Acting Commissioner Bindon had already heard from the resident objectors and had visited the site, it was appropriate that the appeal proceed by way of audio link (telephone) or audio visual link (AVL) and/or by way of further written material, and that Council had not identified any “real prejudice” in circumstances where the applicant was subject to “some serious commercial realities”. Although a suggestion was made in relation to the ongoing conduct of the matter, Ms Nuttall informed the Registrar “I don’t think council’s position is going to change. I’m certainly happy to consider what dates are available and list it as soon as we can for an onsite hearing.”

Evidence

21. In support of its motion, the applicant reads without objection two affidavits of Alyce Irene Johnson, the applicant’s solicitor, affirmed 11 and 16 April 2020. Ms Johnson deposes to the background facts generally summarised above and to more recent developments, and states:

1. The applicant’s town planners and child care experts have not commenced the joint conferencing process and the applicant’s child care experts and town planning experts require until 23 April 2020 to complete the town planning and child care centre design joint report;

2. She is instructed and believes that the applicant will not be in a financial position to continue the proceedings if the hearing is listed in December 2020, and that the significant delay in hearing the appeal will cause financial hardship to the applicant due to holding costs which include $141,000 incurred since the filing of the development application on 22 August 2018 and are accruing at $7,500 per month;

3. She is informed by the applicant’s town planner, Jonathon Wood, that both Mr Wood and Mr McDonald, Council’s expert town planner, agree that no site inspection is required because there is enough information before the Court to address the issues in contention; and

4. If a matter arises which requires that certain aspects of the site be considered, the applicant is prepared to arrange a video and/or photographs of the site for the parties and the Court to view at the appeal hearing.

22. Council calls no evidence on the motion.

23. I informed the parties that I had read the amended statement of facts and contentions dated 4 March 2020, the transcript from the directions hearing before the Registrar on 3 April 2020, and the joint expert report of the acoustic engineers (Stephen Gauld retained for the applicant and Richard Haydon retained for Council) filed on 15 April 2020.

Consideration

24. The principles governing the exercise of the Court’s power to review the Registrar’s decision were stated in Groeneveld v Wollongong City Council [2009] NSWLEC 149; (2009) 168 LGERA 260 at [12]–[13] per Preston CJ of LEC:

“[12] What will be required to make out a case for intervention will vary depending upon the nature of the registrar’s decision under review, in particular whether it is a decision on practice and procedure or a decision which finally determines or has a decisive impact on a party’s rights. In Tomko v Palasty (No 2) at [8] and [9], Hodgson JA (with whom Ipp JA also agreed) provided guidance as to what might be required for the different types of decisions:

8. In the case of a decision on practice of procedure, this will normally require at least demonstration of an error of law, or a House v R error, or a material change of circumstances, or evidence satisfying the strict requirements for fresh evidence. Even then, a court may not think that the interests of justice require intervention. This could be so, for example, if the error of law is a deficiency of reasons and the result is on its face not an unreasonable one.

9. In the case of a decision which finally determines a party’s rights, or which (albeit one of practice or procedure) has a decisive impact on those rights, a court may be more willing to intervene. It may permit further evidence to be led which does not satisfy the strict requirements for fresh evidence, if it is satisfied that the interest of justice require it. It may decide to substitute its own discretionary decision for that of the registrar, even though no House v R error is shown, again if it is satisfied that the interests of justice require this. To that extent, the review may be considered a de novo hearing.

[13] Basten JA also noted that policy factors justifying restraint on interference by a reviewing court may have more weight in the case of decisions on practice and procedure than those determinative of legal rights: see at [47]–[48] and [52(4)].”

25. These principles have been consistently applied by the Court in Sky Design and Concepts Pty Ltd v Pittwater Council (No 4) [2009] NSWLEC 129 at [38], Xiang Rong Investment Pty Ltd v Ku-ring-gai Municipal Council [2012] NSWLEC 44, Parcell v Leichhardt Council [2012] NSWLEC 77 and Golden Max Pty Ltd v Hurstville City Council [2015] NSWLEC 16; (2015) 208 LGERA 221 at [4].

26. At the hearing of the motion today, concise submissions were made by both Ms Reid and Mr Woodward, solicitor for Council, which I summarise.

27. The applicant submitted:

1. The Court would accept that the applicant would suffer financial hardship as detailed in Ms Johnson’s affidavits and that the town planners (Mr Wood and Mr McDonald) had inspected the site today;

2. The concerns regarding the opportunity for the Court to view the site are less relevant in the current circumstances.

3. Ms Reid also informed the Court that both Mr McDonald and Mr Wood had attended the site and that Mr McDonald had indicated to Mr Wood that despite attending the site for an inspection, he was instructed by Council not to undertake any further work on the matter until the present motion had been decided; and

4. Ms Reid repeated a number of submissions made before the Registrar and pointed to the further sworn evidence of Ms Johnson now available.

28. Council submitted:

1. The applicant “plays down” the importance of the view, in circumstances where the site inspection undertaken for the s 34 conference was a “superficial inspection” and the Commissioner would not have had the opportunity of properly inspecting the area and understanding the resident objectors’ concerns;

2. The Court would be reluctant to accept the evidence regarding the applicant’s financial position in Ms Johnson’s affidavit of 16 April 2020; and

3. Although Mr Woodward was initially of the view that Mr McDonald had only been retained “some weeks ago”, he now accepts that Mr McDonald was identified as Council’s expert some time ago, possibly as early as October 2019.

Consideration

29. Having considered the evidence now before the Court, I am of the view that the order vacating the hearing dates should be set aside and that the appeal should proceed on those dates. My reasons may be shortly stated.

30. Adopting the principles I have summarised above and without repeating all the evidence before the Court, I note that the material presently before me is well in excess of that which was before the Registrar at the directions hearing on 3 April 2020. This additional material includes uncontested sworn evidence; a joint expert (acoustic) report; the fact that Mr McDonald, despite Council’s earlier concerns, had now attended the site and had spoken to Mr Wood; and the considered submissions of Ms Reid and Mr Woodward. I note that the Registrar received no evidence and relied solely upon the submissions of the parties, and that Council’s submissions at this time were that Mr McDonald, Council’s recently retained town planner, was apparently unwilling or unable to attend the site due to concerns in relation to the “COVID epidemic”.

31. Although there has been no explanation for the delay in the appeal progressing to hearing, it is clear that the parties have properly endeavoured to attend to their respective obligations. I accept the unchallenged sworn evidence (albeit in a hearsay form) that the applicant is likely to suffer financial hardship by further delay.

32. While I accept that the application is a significant development and that Council has expressed considered concerns in relation to the application, it is clear that as a result of the provision of further material by the applicant and some amendments made to the application, a number of the contentions otherwise raised by Council have now been appropriately addressed.

33. Furthermore, while I am conscious that the present circumstances relating to the COVID-19 pandemic make the conduct of proceedings more difficult, given that there will be joint expert reports in relation to the primary outstanding areas; that Acting Commissioner Bindon has attended the site and has considered the application in some detail for the purpose of the s 34 conference, has heard from a number of the resident objectors, and is available for the three days otherwise allocated for the appeal hearing; that Council’s concerns regarding the availability of Mr McDonald now appear to have been overcome; and that the parties (or more particularly the applicant) will be able to produce appropriate video and/or photographic material to the Court, I consider that the interests of justice (which include the just, quick and cheap resolution of proceedings) are appropriately dealt with by the hearing being reinstated.

34. In relation to concerns expressed by Council, particularly regarding the concerns of the resident objectors, I note that, apart from the fact that a number of the objectors have already been heard on site at the s 34 conference, and while I accept that the application may have undergone some amendment since the s 34 conference, specific provisions are now made for the resident objectors’ evidence to be reduced to writing and supplemented with any photographic evidence that would assist the Court to understand their concerns in accordance with cl 11 of the Court’s COVID-19 Pandemic Arrangements Policy. In particular, cl 11 provides that, in circumstances such as the present, Council is to provide the objectors’ written material to the other party in advance of the hearing and tender it at the hearing. I see no reason why this should not be undertaken at the present hearing and I am comforted in my view that, as stated above, seven of the resident objectors, in particular those that live at 1, 4, 6, 7, 8 and 9 Rope Street and 5 Ryan Street, Dundas Valley, have expressed their concerns orally at the earlier s 34 conference at the site on 5 September 2019 (which have been recorded in writing in Annexure A to the affidavit of Ms Johnson), and that they will have the further opportunity to express their concerns in accordance with the COVID-19 Pandemic Arrangements Policy.

29. In passing, I note that if it had not been for the fact that Acting Commissioner Bindon had already attended and inspected the site and the surrounding area; had heard the concerns expressed by seven resident objectors at the site; was able (as agreed between the parties) to conduct the appeal hearing; and that the acoustic and town planning experts had visited the site and completed their joint report, I may have not vacated the Registrar’s order. I am also satisfied in the circumstances, particularly noting that the applicant is willing to create video and/or photographic representations that may assist in the further consideration of the appeal and that all experts are now available, that it is appropriate that the hearing proceed on 7, 8 and 11 May 2020.

30. Further, although not determinative in my view, I take into account that the applicant first lodged the development application with Council in August 2018. While I accept that, as a result of concerns expressed by Council and others, the application was amended and further expert material has been marshalled which has addressed some of Council’s earlier concerns particularly in relation to “lack of information”, despite this, the hearing dates of 7, 8 and 11 May were allocated on 3 October 2019 some eight months before the allocated hearing. Accepting the concerns arising in relation to the COVID-19 pandemic and the effect upon the usual conduct of business, I note that the parties have, in any event, known for eight months that this appeal was to proceed to a hearing on a particular date. In those circumstances, I am somewhat less sympathetic to the fact that Council may not have arranged to retain an expert (according to the submission made by Ms Nuttall to the Registrar) until relatively recently, and that he may have been recently instructed not to undertake further work until this motion has been decided.

31. I am conscious that, even in the somewhat difficult circumstances, the interests of justice, properly balanced, require that the hearing proceed on the dates otherwise allocated and I am satisfied that appropriate procedures are able to be put in place to ensure that there will be an appropriate hearing of the appeal.

Orders

38. The orders of the Court are:

1. The order made by the Registrar on 3 April 2020 vacating the hearing dates is set aside.

2. The hearing dates of 7, 8 and 11 May 2020 are confirmed.

3. Order 3 of the Court's orders made on 26 March 2020 is varied such that joint expert report on town planning and child care centre design issues by Jonathon Wood, Stuart McDonald, Lynda Campbell and Wendy Shepherd is to be filed and served by 23 April 2020.

39. The Court also directs that:

1. The hearing on 7 and 8 May 2020 is to proceed by way of audio link.

2. The hearing on 11 May 2020 is to proceed by audio visual link between 9 am - 12 noon and thereafter by audio link.

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Decision last updated: 17 April 2020